MARTHA STEWART and : S1 03 Cr. 717 (MGC) PETER BACANOVIC, : Defendants. :

Transcription

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA : -v.- : MARTHA STEWART and : S1 03 Cr. 717 (MGC) PETER BACANOVIC, : Defendants. : x GOVERNMENT S MEMORANDUM OF LAW IN OPPOSITION TO MARTHA STEWART S MOTION FOR A NEW TRIAL PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 33 The Government respectfully submits this memorandum of law in opposition to defendant Martha Stewart s motion, joined in by defendant Peter Bacanovic, pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial based on alleged juror misconduct during voir dire. Stewart argues that she is entitled to a new trial, or alternatively an evidentiary hearing, because Chappell Hartridge, who was seated as a juror at trial, allegedly gave deliberately false answers to certain questions posed in the jury questionnaire. (Memorandum in Support of Martha Stewart s Motion for New Trial ( Stewart Br. ) at 1). As described below, Stewart s motion for a new trial should be denied. INTRODUCTION Stewart s motion fails because she does not come close to satisfying the two-part showing required to warrant a new trial based on alleged juror misconduct at voir dire: first, that the defendant must show that the juror deliberately made a material misstatement in response to a question posed at voir dire; and second, that an accurate answer at voir dire would have required

2 the Court to sustain a challenge for cause. It is clear that Stewart fails the second prong of this test. The law is settled that even a juror s intentional failure to disclose prior arrests and civil judgments alone is insufficient to warrant a new trial because the mere fact that a juror has been arrested or had civil judgments against him would not serve as a legitimate basis for a challenge for cause. Further, Stewart s current claim that she would have sought to strike Mr. Hartridge for cause based on his arrest is belied by, among other things, the fact that Stewart herself failed to challenge for cause at least fifteen different prospective jurors who reported prior charges or court appearances on charges in the jury questionnaire, including for domestic violence, assault, obstruction of justice, and fraud. (See Affirmation of Karen Patton Seymour (hereinafter, Seymour Aff.) 4-7). 1 Nor has Stewart even alleged facts sufficient to raise a reasonable inference that Mr. Hartridge s answers at voir dire were intentionally false. Although Stewart mentions that the arrest was dismissed and the records sealed pursuant to New York Criminal Procedure , she fails to reveal that provides that where the arrest is dismissed and the records sealed, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution. Section further provides that [e]xcept where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution. Accordingly, the most plausible explanation for Mr. 1 The Government has filed under seal the affirmation of AUSA Karen Patton Seymour, providing more specifics on certain of the prospective jurors not challenged by Stewart. The Government filed the Seymour Affirmation under seal in order to comply with the Court s order to maintain the confidentiality of juror responses to the questionnaire. 2

3 Hartridge s nondisclosure of the arrest is that he believed that he was not required to disclose it at all. The Government further notes that in her brief and supporting affidavits Stewart, in effect, has revealed the answers provided by Mr. Hartridge in response to certain questions posed in the jury questionnaire. This is in direct contravention of the Court s order that the jurors answers to the questionnaire would be kept confidential, a promise made by the Court to jurors in the questionnaire itself. Stewart chose not to redact either her brief or her supporting materials or file them under seal, instead effectively publishing Mr. Hartridge s responses to the jury questionnaire to the world. This has resulted in extensive press coverage of Mr. Hartridge s allegedly false answers in the questionnaire, thereby destroying the very privacy interests that the Court had endeavored to protect by keeping jurors responses confidential. 2 BACKGROUND Following a five-week trial, Stewart was convicted on March 5, 2004 of two counts of making false statements in violation of 18 U.S.C. 1001, one count of obstruction of justice in violation of 18 U.S.C. 1505, and one count of conspiracy to make false statements, obstruct justice and commit perjury in violation of 18 U.S.C Bacanovic was convicted of one count of making false statements in violation of 18 U.S.C. 1001, one count of perjury in violation of 18 U.S.C. 1621, one count of obstruction of justice in violation of 18 U.S.C. 2 Stewart s clear violation of this Court s order cannot be dismissed as an innocent or inadvertent mistake -- indeed, the Government first learned of Stewart s claims against Mr. Hartridge in press reports during the afternoon of March 31, 2004, before it had even received a copy of the Rule 33 motion. Moreover, Stewart published her brief and supporting materials on her website, with a note to her fans that the fairness of my trial was compromised by a juror who violated his oath and lied in order to serve on the jury that heard my case. 3

4 1505, and one count of conspiracy to make false statements, obstruct justice and commit perjury in violation of 18 U.S.C On March 31, 2004, Stewart filed the instant Rule 33 motion seeking a new trial based on allegedly false information provided by one of the seated jurors, Chappell Hartridge, in response to certain questions posed in the jury questionnaire. Specifically, Stewart claimed that Mr. Hartridge failed to disclose that (i) he had been arrested for assault seven years ago, in response to questions 42 and 45 of the jury questionnaire; (ii) he had three civil judgments entered against him in 1990, 1991 and 1997, and his wife had two judgments against her, in response to questions 43(d) and 43 (e); and (iii) he allegedly embezzled funds from a little league located in the Bronx while serving in a voluntary capacity as treasurer of the league, in response to question 43(e) (and perhaps question 45 as well). (Stewart Br. at 8-10). In support of these allegations, Stewart submitted affidavits from Gail Outlaw, the woman whom Mr. Hartridge is alleged to have assaulted in 1997, Robert Morvillo, and Frank Senerchia, Stewart s bodyguard. For purposes of this memorandum, the Government assumes arguendo the underlying facts as alleged by Stewart to be true, except as to the embezzlement accusation which the Government believes is unfounded speculation and entirely irrelevant to the issues in dispute. Stewart claims that Mr. Hartridge deliberately answered these questions falsely because he was biased against her and wished to be seated on the jury. (Stewart Br. at 13-18). In asserting Mr. Hartridge s alleged bias, Stewart relies on certain post-verdict statements attributed to Mr. Hartridge in response to questions posed by the press, including that [m]aybe [the verdict] is a victory for the little guy who loses money in the markets because of these types of 4

5 transactions. (Stewart Br. at 3). 3 From these public statements, none of which addresses or bears on the allegedly false answers Mr. Hartridge provided at voir dire or otherwise suggests implicitly or explicitly that Mr. Hartridge provided false answers so that he could sit on the jury, Stewart argues that Mr. Hartridge s bias is to be presumed. (Stewart Br. at 15-17). As explained in detail below, Stewart misstates the standard for obtaining a new trial based on a juror s allegedly false statements at voir dire, and misconceives the analysis that the Court must conduct in deciding whether the alleged false statements compromised the defendant s right to a fair trial. APPLICABLE LEGAL PRINCIPLES Stewart claims that she is entitled to a new trial, or at a minimum an evidentiary hearing, because she alleges that Mr. Hartridge gave deliberately false answers to questions 42, 43(d), 43(e), and 45 in the jury questionnaire. The test articulated by the Supreme Court and the Second Circuit, however, requires that Stewart show not only that the answers were deliberately false, but that accurate responses would have demonstrated bias and sustained a challenge for cause at voir dire. This showing Stewart cannot make. The Supreme Court has set forth a two-part test for obtaining a new trial where a juror is alleged to have given an untruthful answer to a question on voir dire: a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984). Contrary to Stewart s 3 A complete litany of statements that Stewart complains about is listed on pages 3 and of her brief. 5

6 argument that a showing of a deliberate lie on voir dire alone is sufficient to meet the McDonough test (see Stewart Br. at 7 ( A lie that simultaneously demonstrates dishonesty and partiality on the part of the juror satisfies both prongs of the McDonough test )), the Second Circuit has repeatedly made it clear that a new trial may not be granted under McDonough unless the defendant shows both deliberate dishonesty by the juror at voir dire and a valid challenge for cause based on the accurate answer. See United States v. Greer, 285 F.3d 158, 170 (2d Cir. 2002) ( Both prongs [of the McDonough test] must be met before a new trial may be obtained. ); United States v. Shaoul, 41 F.3d 811, (2d Cir. 1994) ( We reiterate that, in order to obtain a new trial, a defendant must show both that a juror gave a dishonest answer, and that the correct answer would have provided a basis for the defendant to challenge the juror for cause. ) (emphases in original). Deliberate dishonesty at voir dire by itself is insufficient to warrant a new trial under McDonough. In deciding whether a defendant can satisfy the second prong of the McDonough test, it is irrelevant whether a party would have used a peremptory challenge to strike the juror; instead, the Court must determine whether an accurate response at voir dire would have required that the juror be excused for cause had a challenge been raised. See Shaoul, 41 F.3d at 816 ( A defendant may certainly exclude [] jurors by the use of peremptory challenges, but he has no basis for arguing that a district court is required to sustain such a challenge for cause. ) (emphasis added). The Supreme Court noted in McDonough that a juror s motives for concealing information may vary, but only those reasons that affect a juror s impartiality can truly be said to affect the fairness of a trial. McDonough, 464 U.S. at 556. The Second Circuit has expanded on this analysis to explain that a court is to examine whether an accurate response 6

7 on voir dire would have demonstrated bias on the juror s part sufficient to sustain a challenge for cause: Challenges for cause are generally based on actual bias, implied bias, or inferable bias. Actual bias is bias in fact. Implied bias, by contrast, is bias presumed as a matter of law. Finally inferred bias is available when actual or implied bias does not apply. Bias may be inferred when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias. Greer, 285 F.3d at 171 (quoting United States v. Torres, 128 F.3d 38, 47 (2d Cir. 1997)). Thus, if the defendant cannot show that an accurate answer would have established the juror s bias, the Court may not grant a new trial even if the juror is found to have deliberately lied in response to questioning at voir dire. Significantly, the Second Circuit has expressly recognized that a juror s deliberate lies in voir dire concerning prior arrests do not justify a new trial. In United States v. Langford, 990 F.2d 65 (2d Cir. 1993), a juror deliberately failed to disclose at voir dire her prior arrests for various crimes, including larceny and prostitution, and two prior non-felony convictions for prostitution, but the District Court and the Court of Appeals nonetheless determined that no new trial was warranted. See id. at 67, The Government is aware of no case in which a juror s concealment of prior arrests or civil judgments against the juror was deemed sufficient to sustain a challenge for cause. Indeed, the case law is precisely the opposite, denying new trial motions where a juror failed to disclose at voir dire prior arrests and convictions, see, e.g., Langford, 990 F.2d at 69-70; United States v. Ross, 263 F.3d 844, 847 (8 th Cir. 2001) (holding that juror s undisclosed brushes with the law were insufficient by themselves to establish that the defendant could have successfully 7

8 challenged the juror for cause), and prior involvement by the juror or family members in civil or criminal court proceedings and investigations by law enforcement authorities, see, e.g., United States v. North, 910 F.2d 843, (D.C. Cir.) (per curiam) (denying new trial motion where juror failed to disclose that her brothers had been charged with criminal conduct and that she herself had testified before the grand jury investigating a robbery allegedly committed by one of her brothers), opin. withdrawn & superseded on other grounds by 920 F.2d 940 (D.C. Cir. 1990) (per curiam); Chase Manhattan Bank v. T&N plc, 1997 WL , at *9-11 (S.D.N.Y. Apr. 28, 1997) (Koeltl, J.) (denying new trial motion where juror failed to disclose, among other things, various bankruptcy and other civil litigation in which she and her family members had been involved). Indeed, courts have refused to grant new trials even where the juror concealed information far more indicative on its face of bias than prior arrests or involvement in civil litigation, including where a juror in a narcotics trial concealed at voir dire that he had been approached by a third party prior to the trial who wanted to ensure that the defendant had a sympathetic ear on the jury, Greer, 285 F.3d at 166, , and where a juror in a criminal case in the Southern District of New York failed to disclose that he was related by marriage to a federal prosecutor in the Southern District, see Shaoul, 41 F.3d at 816. DISCUSSION Stewart has failed to allege facts sufficient to warrant an evidentiary hearing, much less a new trial, based on Mr. Hartridge s alleged misstatements at voir dire. The Government does not condone Mr. Hartidge s inaccurate responses to the jury questionnaire if he indeed did make them intentionally. Accurate and forthright answers at voir dire are, of course, 8

9 vital to ensuring that the defendants and the Government s right to a fair trial is preserved. A hearing is unnecessary in this case, however, because even if Stewart could establish that Mr. Hartridge s answers at voir dire were intentionally false, which the Government doubts that she could, Stewart nevertheless would be unable to show that accurate responses would have required Mr. Hartridge s dismissal for cause. A. The Per Se Rule Advocated By Stewart For Deliberately False Answers At Voir Dire Is Contrary to Second Circuit Precedent. Stewart s principal contention is that Mr. Hartridge deliberately lied about his prior arrest and that this alleged lie gives rise to a presumption that Mr. Hartridge was biased against Stewart. In essence, Stewart seeks a per se rule that a juror s intentionally false statement at voir dire is sufficient by itself to establish both that the juror was motivated to lie by a desire to sit on the jury and that such a desire demonstrates a lack of impartiality. Stewart relies for this per se rule on United States v. Colombo, 869 F.2d 149, (2d Cir. 1989). Colombo, however, announced no such rule and is easily distinguishable. In Colombo, the defendant offered the affidavit of a juror who alleged that another juror had said that she deliberately concealed at voir dire that her brother-in-law was a government lawyer and that she had some familiarity with the facts of the case, because she wished to sit as a juror on the case. See id. The Second Circuit held that the juror s alleged concealment, if true, demonstrated a lack of impartiality that would require a new trial, and remanded to the trial court for a determination of whether the juror s brother-in-law was, in fact, a government attorney. See id. On remand, the District Court determined that the juror had not intentionally withheld the information and denied the Rule 33 motion, which was affirmed on appeal. See United States v. Colombo, 909 F.2d 9

10 711, 713 (2d Cir. 1990). The Second Circuit explicitly rejected Stewart s interpretation of Colombo in United States v. Langford, 990 F.2d 65 (2d Cir. 1993). In Langford, the defendant raised essentially the same argument Stewart raises in this motion -- a juror s intentional concealment of prior arrests at voir dire gave rise to a presumption of impartiality requiring a new trial. See 990 F.2d at 68. In that case, the juror intentionally concealed not just her prior arrests, but also prior convictions for prostitution. See id. at 67. Nonetheless, the Second Circuit rejected the defendant s argument that Colombo established a per se rule that a juror s intentionally false response on voir dire is an automatic ground for a new trial. Id. at 69. The Court reasoned that such a rule would not comport with McDonough s admonition that the reviewing court consider whether the dishonesty had a bearing on [the juror s] impartiality. Id. In other words, bias could not be presumed merely because the juror lied at voir dire. Indeed, the Second Circuit upheld the District Court s findings that the juror s lies about her prior arrests and convictions were motivated, not by bias, but by embarrassment, and distinguished Colombo on the grounds that [t]here was no suggestion that [the juror] had any evidentiary knowledge relating to [the defendant s] case. Nor was there any evidence that [the juror] gave false answers because of any desire to sit on the jury. Id. at If there could be any doubt that the per se rule proposed by Stewart was decisively rejected in Langford, the Second Circuit s subsequent decisions in cases such as United States v. Shaoul, 41 F.3d 811 (2d Cir. 1994), and United States v. Greer, 285 F.3d 158 (2d Cir. 2002), make it abundantly clear that no presumption of bias arises from a juror s intentionally false statements at voir dire. 10

11 B. Stewart Has Presented No Evidence That Mr. Hartridge Could Have Been Successfully Challenged For Cause Or That He Was Motivated By Bias. Stewart attempts to resurrect the per se rule rejected a decade ago by the Second Circuit because she is unable to present any evidence that Mr. Hartridge would have been stricken for cause had he revealed his prior arrest and the civil judgments against him at voir dire. It is beyond dispute that Mr. Hartridge s prior arrest could not have by itself required his dismissal for cause -- Langford establishes that prior arrests, and even misdemeanor convictions, are not a valid basis for a challenge for cause. Here, Stewart has articulated no defensible or legitimate basis to challenge Mr. Hartridge merely because he purportedly was arrested for assault in an arrest which was dismissed and sealed in state court. It should go without saying that an arrest for assault would have no bearing on a prosecution for false statements, obstruction of justice, and securities fraud. Nothing about the arrest would have indicated that Mr. Hartridge was biased against Stewart, or that he was likely to have formed opinions about the case prior to trial. As the Eighth Circuit has pointed out, if there is any inference about bias to be drawn from the mere fact that a juror was previously arrested, it would be that the juror might well be biased in favor of defendants in general. Ross, 263 F.3d at 847. Nor has Stewart explained how the fact that there may be civil judgments against Mr. Hartridge and his wife could possibly bear on Mr. Hartridge s bias or have led to a successful challenge for cause. Again, it remains a mystery in Stewart s motion what relevance these civil judgments would have had in determining whether Mr. Hartridge would be biased against Stewart in a trial for false statements, obstruction of justice, and securities fraud. Stewart certainly cannot argue that the mere fact that a juror has been sued or involved in litigation would 11

12 be valid grounds for dismissal of a juror for cause. Such an argument would be contrary to law and common sense. See, e.g., United States v. North, 910 F.2d at (denying new trial motion where juror failed to disclose that her brothers had been charged with criminal conduct and that she herself had testified before the grand jury investigating a robbery allegedly committed by one of her brothers); Chase Manhattan Bank v. T&N plc, 1997 WL , at *9-11 (denying new trial motion where juror failed to disclose, among other things, various bankruptcy and other civil litigation in which she and her family members had been involved). In an effort to avoid the inevitable conclusion that Mr. Hartridge s accurate responses would not have been sufficient to sustain a challenge for cause, Stewart points to the dismissal of Prospective Juror 53 as evidence that the Court would have been required as a matter of law to dismiss Mr. Hartridge had he informed the parties of his prior arrest and civil judgments. This argument is wholly unavailing because Prospective Juror 53 was dismissed, not because the Court determined that prior arrests in general were valid grounds for striking jurors for cause, but by agreement of the parties. (Tr. at 237). This was in accordance with the procedure adopted prior to voir dire in which the Court agreed to dismiss any prospective juror whom the parties all agreed should be dismissed. (Tr. at 77). Indeed, that the Court would not have dismissed Prospective Juror 53 absent agreement among the parties is evident on the face of the transcript: after learning of the juror s prior arrests, the Court stated to the parties, I take it nobody has any challenges to [Prospective Juror 53]. (Tr. at 237). Although the parties agreed to dismiss Prospective Juror 53, nothing in the record suggests that the Court would have dismissed Prospective Juror 53 for cause had any of the parties objected to his dismissal. Even more importantly, moreover, nothing in the law would have required his dismissal. See 12

13 Langford, 990 F.2d at Stewart s current protestations notwithstanding, it is doubtful that Stewart believes her own argument that Mr. Hartridge s arrest would have served as a valid challenge for cause. Completely unmentioned in Stewart s motion are the numerous prospective jurors who disclosed prior charges or court appearances on charges, but went unchallenged by Stewart either prior to or at voir dire. As set forth in greater detail in the Seymour Affirmation, filed under seal, Stewart failed to challenge for cause at least fifteen such jurors. The absence of challenges with respect to certain of these jurors is particularly telling. One prospective juror reported that he had been in court for domestic violence, yet Stewart raised no challenge to this juror. (Seymour Aff. 7). The same prospective juror also reported that he had been questioned on many occasions by law enforcement. (Id.). This example clearly establishes as disingenuous Stewart s current claim that Mr. Hartridge s arrest for assaulting his then-girlfriend -- which, it bears repeating, was dismissed and sealed -- is clear proof that he is a misogynist out to convict Stewart at all costs. Another prospective juror was charged with assault, but again Stewart raised no challenge for cause. (Id.). Yet another was charged with obstruction of justice, which one might imagine would raise concerns for a defendant charged with similar offenses, but again Stewart did not challenge this prospective juror for cause at voir dire. (Id.). Another prospective juror reported that he pleaded guilty to forgery charges involving a forged check that he attempted to cash, but Stewart did not challenge that juror. (Id.). Another unchallenged prospective juror reported at voir dire that he appeared before a judge to face charges for contributing to the delinquency of a minor, but Stewart had no objection to that juror either. (Id.). 13

14 In his affidavit, Mr. Morvillo appears to concede that Mr. Hartridge s arrest, even coupled with the other alleged nondisclosures, would not necessarily have led him even to challenge Mr. Hartridge for cause, much less required the Court to dismiss Mr. Hartridge. Mr. Morvillo states only that I submit to the Court that, had these facts been properly disclosed by Hartridge, I would have considered each of these facts, individually and cumulatively, as a basis to make a cause challenge application during voir dire. (Morvillo Aff. 11). Tellingly, Mr. Morvillo stops far short of claiming that he actually would have raised a challenge for cause or that these facts would have necessitated Mr. Hartridge s dismissal. These omissions fundamentally undermine Stewart s claim that she would have challenged Mr. Hartridge on the basis of his prior arrest for assault, and reveal that Stewart s new-found belief that prior brushes with the law are legitimate grounds for a challenge for cause is little more than an after-the-fact justification to impeach a jury verdict with which she does not agree. 4 C. Mr. Hartridge s Post-Verdict Statements Do Not Establish Any Bias On His Part And May Not Be Inquired Into Under Fed R. Evid. 606(b). Lacking any evidence in the record to support her contention that Mr. Hartridge would have been successfully challenged for cause, Stewart resorts to excerpting Mr. Hartridge s post-verdict statements as proof of his bias against her. As a threshold matter, none of the statements referred to by Stewart would support an inference that Mr. Hartridge failed to perform 4 Stewart claims that the Court s handling of Prospective Juror 109 supports her claim that Mr. Hartridge would have been dismissed had he disclosed his prior arrest. (Stewart Br. at 13). In fact, precisely the opposite is true. The Government challenged Prospective Juror 109 for cause, but the challenge was opposed by both Stewart and Bacanovic, despite supplemental information provided by the Government off-the-record. The Court eventually denied the Government s challenge. 14

15 his duty as a juror conscientiously and fairly. None of the statements attributed to Mr. Hartridge suggests in any way that he failed to consider the evidence presented at trial, failed to follow the Court s instructions, failed to deliberate with his fellow jurors, or voted to convict the defendants based on any improper motive or bias. Mr. Hartridge s personal opinions about whether the verdict would send a message are irrelevant to the validity of the verdict, and indeed may not be inquired into under Rule 606(b) of the Federal Rules of Evidence: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury s deliberations or to the effect of anything upon that or any other juror s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. Fed. R. Evid. 606(b). As the Rule makes clear, any inquiry into the jury s deliberations or a juror s thought processes -- even an inquiry directed at the effect of extra-record information -- is out of bounds. The exception allowing jurors to testify on the question whether extraneous prejudicial information was improperly brought to the jury s attention is a narrow one. See Bibbins v. Dalsheim, 21 F.3d 13, 17 (2d Cir. 1994). Even when a juror attests to receiving information outside the record, the juror may not go on to testify about the effect of that information on the juror s mental processes or the jury s deliberations. Id.; see also Greer, 285 F.3d at 173 ( The court may not inquire into the degree upon which the extra-record information was used in deliberations and the impression which jurors actually had about it ) 15

16 (quoting United States v. Calbas, 821 F.2d 887, 897 (2d Cir. 1987)). In fact, in Greer, the District Judge did ask the jurors at a post-trial evidentiary hearing whether the extra-record information affected their ability to be fair and impartial, and the Second Circuit specifically disapproved of that line of questioning as improper. See Greer, 285 F.3d at 173. Here, Stewart has not even alleged, much less offered any evidence, that Mr. Hartridge or any other member of the jury was subjected to any extraneous influence or received extra-record information. Instead, Stewart asks the Court to do what it may not -- inquire into Mr. Hartridge s thought processes during deliberations based on post-verdict statements of his personal opinions about the possible message sent by the verdict. Such an inquiry is particularly inappropriate in a case such as this in which none of the statements even remotely supports an inference of bias or improper motive. Moreover, Stewart utterly fails to explain how Mr. Hartridge s post-verdict statements have any relevance to the truthfulness of his responses at voir dire or his alleged motive in concealing information. On the face of Mr. Hartridge s post-verdict statements, they have absolutely nothing to do with his prior arrest, civil judgments, or any of the other allegations of wrongdoing made by Stewart. Mr. Hartridge also never stated or implied in these statements that he wanted to be on the jury or that he withheld information so that he could sit on the jury. In Colombo, by contrast, the Court ordered a hearing where a juror was accused by a fellow juror in an affidavit of deliberately concealing that her brother-in-law was a government lawyer and that she had knowledge of the facts of the case, because the juror wanted to sit on the case. See Colombo, 869 F.2d at

17 Stewart asks this Court to assume the conclusion that Mr. Hartridge wanted to sit on the jury, and accordingly failed to disclose his prior arrest, based solely on the fact that Mr. Hartridge spoke to the media about the verdict and supposedly asked for compensation to appear on a morning television program. However, in none of the affidavits submitted by Stewart, which otherwise report every imaginable rumor and innuendo against Mr. Hartridge, does a single person state or imply that he or she has personal knowledge that Mr. Hartridge concealed these facts about his background so that he could sit on the jury or for some other improper purpose. Stewart would have this Court do further violence to Mr. Hartridge s privacy based on pure speculation, supported by no hard facts whatsoever, that Mr. Hartridge was motivated by greed, misogyny, class bias, and a generalized dislike for the defendants in this case. Having failed to establish any basis to dismiss Mr. Hartridge for cause had he disclosed his prior arrest and civil judgments, and having failed to articulate any plausible direct or indirect link between the concealment of this information and bias against the defendants, Stewart has resorted to launching personal attacks against Mr. Hartridge in the hope that something will stick. An evidentiary hearing on alleged juror misconduct must be more, however, than a forum for personal attacks on a juror, and Stewart has failed to allege facts sufficient to raise even an inference that Mr. Hartridge was motivated by bias against Stewart in allegedly concealing information about his past arrest and civil judgments. D. Stewart Has Failed Even To Present Evidence Giving Rise To A Reasonable Inference That Mr. Hartridge Intentionally Withheld Information. Although Stewart accuses Mr. Hartridge of withholding material information at voir dire, she has failed to present any affirmative evidence that Mr. Hartridge did so 17

18 intentionally, as required by the Supreme Court and the Second Circuit. Mr. Hartridge did not disclose his prior arrest, but it is quite significant that his arrest was dismissed and sealed pursuant to New York Criminal Procedure Critically, New York Criminal Procedure , which Stewart fails to mention in her papers, provides that, [u]pon termination of a criminal action or proceeding against a person in favor of such a person, as defined in subdivision two of section of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.... Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution. (emphasis added). It is entirely possible that Mr. Hartridge failed to disclose his prior arrest under the belief that he was not required to do so under New York law. Mr. Hartridge is not an attorney, nor presumably is he an expert in New York or federal law, and the Supreme Court in McDonough noted that courts are not to assume that jurors have lied in response to questions that might require some knowledge of the law: Called as they are from all walks of life, many [jurors] may be uncertain as to the meaning of terms which are relatively easily understood by lawyers and judges. 464 U.S. at 555. If, as seems likely, Mr. Hartridge answered as he did because he understood that he was not required to disclose an arrest that was dismissed and sealed in state court, then his nondisclosure would not have been intentionally false, and Stewart s Rule 33 motion would fail McDonough s first prong. 5 5 The Government would also note that none of the questions in the jury questionnaire explicitly asked whether the juror had ever been arrested before. Furthermore, it is possible that because the questions did not specifically ask whether he had ever been arrested, Mr. Hartridge may not have understood the questions to require that he disclose his prior arrest. 18

19 With respect to the civil judgments that Stewart alleges have been filed against Mr. Hartridge, Stewart has presented no evidence that Mr. Hartridge ever appeared in court, was aware of these judgments, or deliberately lied about them. Indeed, it is quite possible that these are default judgments against Mr. Hartridge about which he may be unaware or may have forgotten. Two of them, representing judgments for $1815 and $1471, were filed over a decade ago in 1990 and The third, a judgment for $11,392 in favor of Gold Key Lease, Inc., was filed seven years ago in 1997, and may in fact have been disclosed in Mr. Hartridge s questionnaire. (See Seymour Aff. 8). Moreover, Stewart fails even to explain how disclosure of these judgments could possibly have served as a valid basis for a challenge for cause. 6 Although entirely irrelevant to any response in the jury questionnaire, Stewart also accuses Mr. Hartridge of embezzling funds while serving in a volunteer capacity at a little league. There is no claim that Mr. Hartridge was ever formally accused of embezzlement, charged with embezzlement, sued by the league, or appeared in court. Stewart fails to identify a single question which would have required Mr. Hartridge to disclose these accusations. The best that Stewart can do is assert that Question 43(e), asking whether the juror had ever [b]een accused of wrongdoing on the job, called for Mr. Hartridge to disclose the alleged embezzlement. As Stewart herself admits, the little league position held by Mr. Hartridge was a voluntary one (Stewart Br. at 11), and voluntary positions are rarely considered jobs. Moreover, even taking 6 Stewart s claim that Mr. Hartridge deliberately lied about two judgments entered against his wife is even more speculative and absurd. Stewart has alleged no facts that would suggest that Mr. Hartridge knew of these judgments or that he deliberately concealed them or that he did so out of a burning desire to sit on the jury. Moreover, Stewart does not even bother to offer a theory of how a challenge for cause could possibly have been sustained had Mr. Hartridge disclosed this information about his wife. 19

20 the statements as relayed by Mr. Senerchia in his affidavit as having some basis in fact, there is no evidence that anyone from the little league spoke to Mr. Hartridge about the allegations. (Stewart Br. at 10-11). It is quite revealing that Stewart would go to such desperate lengths to discredit a juror by publicly accusing him of embezzlement without, by her own admission, any documentary support for the claim. (Stewart Br. at 11 (stating that the principal accuser of Mr. Hartridge had discarded the evidence he had gathered through his investigation ). Stewart s speculative and irrelevant accusation that Mr. Hartridge may have embezzled funds from the little league is premised on nothing but rumor and innuendo, and is designed for a single purpose -- to humiliate and embarrass Mr. Hartridge, and to do so for no purpose other than to cast doubt on the validity of the conviction in the public eye. E. Post-Verdict Inquiries Into Alleged Juror Misconduct Are Strongly Disfavored. Courts strongly disfavor post-verdict inquiries into juror conduct. As the Supreme Court explained: [a]llegations of juror misconduct, incompetency, or inattentiveness, raised for the first time... after the verdict, seriously disrupt the finality of the process. Moreover, full and frank discussion in the jury room, jurors willingness to return an unpopular verdict, and the community s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct. Tanner v. United States, 483 U.S. 107, (1987). Accordingly, the Second Circuit has erected high barriers to such inquiries. A trial court should permit post-verdict questioning of jurors only when reasonable grounds for investigation exist. United States v. Moon, 718 F.2d 1210, 1234 (2d Cir. 1983). Reasonable 20

21 grounds do not exist unless there is clear, strong, substantial and incontrovertible evidence... that a specific, nonspeculative impropriety has occurred which could have prejudiced the trial of a defendant. Id.; see also United States v. Rosario, 111 F.3d 293, 299 (2d Cir. 1997) ( a trial court is required to hold a post-trial juror interrogation only when... there is clear, strong and incontrovertible evidence of misconduct). Even where there are sufficiently credible allegations of juror misconduct prejudicial to the defendant to warrant an inquiry, the Court has a duty to supervise and closely control such inquiries, United States v. Calbas, 821 F.2d 887, 895 (2d Cir. 1987), and must not permit defendants to launch fishing expeditions. See United States v. Ianniello, 866 F.2d 540, 542 (2d Cir. 1989) ( [t]his court has consistently refused to allow a defendant to investigate jurors merely to conduct a fishing expedition ); Miller v. United States, 403 F.2d 77, 82 (2d Cir. 1968) ( Appellant s assertion that a defendant must be as free to interrogate jurors after a conviction as he is to interrogate prospective witnesses before trial does not require extended answer. Inquiry of jurors after a verdict seeks to impugn the validity of judicial action on the ground of misconduct of a member of the tribunal. The court has a vital interest in seeing that jurors are not harassed or placed in doubt about what their duty is and that false issues are not created ). Indeed, courts have recognized that the best practice is often for the Court itself to conduct the questioning. See United States v. Calbas, 821 F.2d at 895. At a minimum, counsel must notify the Court of its intention to conduct post-trial questioning of jurors so that the Court may take full control of the matter, United States v. Moten, 582 F.2d at , and order that such questioning, where warranted, be conducted under the strict supervision and 21

22 control of the court, with inquiry restricted to those matters found by the court as both relevant and proper. King v. United States, 576 F.2d 432, 438 (2d Cir. 1978). And, as soon as it becomes apparent that the above-described reasonable ground to suspect prejudicial jury impropriety do not exist, the inquiry should end. Moon, 718 F.2d at Stewart s attack on Mr. Hartridge, publicly accusing him of embezzlement based on the thinnest of allegations and opening up every facet of his life to public scrutiny, underscores the danger of permitting unbridled post-verdict inquiries and investigations into juror conduct. Indeed, the dangers of unchecked post-verdict inquiries are so great the Supreme Court has recognized that [i]t is not at all clear... that the jury system could survive such efforts to perfect it. Tanner, 483 U.S. at 120. As the Supreme Court warned almost a century ago in McDonald v. Pless, 238 U.S. 264 (1915): [L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication[,] and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference. The jury system could not function effectively if defendants were allowed to hurl accusations of misconduct at jurors based on the unsworn allegations of third parties, and then, to add insult to injury, obtain evidentiary hearings into those allegations. It would be the rare citizen who would be willing to perform her civic duty knowing that she would be subjecting herself to public 22

23 ridicule and humiliation in the event the defendant scoured her background in order to accuse her of even the most scurrilous of charges. Such an attempt to intimidate and harass jurors should not be condoned merely because the defendant disagrees with the verdict or, as in this case, disapproves of the juror s post-verdict statements. Based on the record and the law, there is no need for further inquiry. If the Court nevertheless believes that an evidentiary hearing is warranted, the Government would propose that the Court itself conduct the inquiry and question Mr. Hartridge. Such a procedure would be consistent with the Second Circuit s decisions in Calbas and Moten, and is the procedure used by Judge Koeltl in Chase Manhattan Bank v. T&N plc, 1997 WL , at *9-11, in conducting an evidentiary hearing on a claim of juror misconduct during voir dire. 23

24 CONCLUSION For the foregoing reasons, the Court should deny Stewart s motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, an evidentiary hearing, and issuance of subpoenas. Dated: New York, New York April 7, 2004 Respectfully submitted, DAVID N. KELLEY United States Attorney By: KAREN PATTON SEYMOUR MICHAEL S. SCHACHTER WILLIAM A. BURCK Assistant United States Attorneys Tel. (212) /2631/